Plaintiffs' post-remand discovery has revealed transcripts of what LSC's lawyers, surely with tongue-in-cheek, characterize as deliberations. Nonetheless, this Circuit has held that "where an agency has issued a formal opinion or a written statement of its reasons for acting, transcripts of agency deliberations . . . should not routinely be used to impeach that written opinion. Kansas State Network, Inc. v. F.C.C., 232 App. D.C. 10, 720 F.2d 185, 191 (D.C. Cir. 1983); accord LO Shippers Action Committee v. I.C.C., 273 App. D.C. 11, 857 F.2d 802, 805-06 (D.C. Cir. 1988), cert. denied, 490 U.S. 1089, 104 L. Ed. 2d 986 , 109 S. Ct. 2429 (1989). It has long been recognized that District Courts cannot test the mental processes of agency decisionmakers except in very unusual circumstances. See Kenneth Culp Davis, 3 Administrative Law Treatise §§ 17:4 - 17:5 (1980). In this case, plaintiffs have made an insufficient showing of procedural irregularity to warrant such a problematic and likely inconclusive inquiry. The agency did issue a written opinion, in the form of its final version of the rule, published in the Federal Register. See 54 Fed. Reg. 31954. In the Federal Register, LSC's staff explained the rationale for adopting the rule, set forth the facts relied on, and responded to the written and oral comments. There was at least some basis for their conclusions in the record.

It is apparent from the record that LSC was preoccupied with its growing belief that there is something pernicious in litigation brought on behalf of the poor that could possibly have political consequences, even when the thrust of the litigation is clearly to support the objectives of LSC's enabling statute. The proof strongly suggests that the knowledge of the LSC board in this area was limited, and thus some of its assumptions in this respect may well be flawed. Nonetheless, there was comment material to bolster those misapprehensions, and the Court's understanding of the facts is irrelevant. The test is not whether an agency's reasons are correct, but whether they are rationally based. Moreover, the rule need not be the best rule conceivable; nor, under the standard of review, must the rule be perfectly fitted to the problems the agency purports to be addressing. See Motor Vehicle Manufacturers Association v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443 , 103 S. Ct. 2856 (1983); FORMULA v. Heckler, 250 App. D.C. 353, 779 F.2d 743, 760-61 (D.C. Cir. 1985). Thus this Court finds that LSC did not act arbitrarily or capriciously as a matter of law on the relevant undisputed facts shown.

II

Plaintiffs also claim that the regulation improperly constrains speech protected by the First Amendment, and that it is over broad, vague, and an unconstitutional condition.
*fn1"
None of these First Amendment claims have merit sufficient to overturn the rule on its face. Acting within the broad policy authority that the Court of Appeals has since approved, LSC determined as a matter of discretion that it should not finance redistricting lawsuits and related activities. The regulation specifically accomplishes that end. It simply prohibits recipients of LSC funds or their employees from using LSC funds to engage in redistricting activities of any kind.

Id. at 4454 (citing United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697 , 107 S. Ct. 2095 (1987). The rule at issue does not prohibit employees of recipient organizations from engaging in otherwise permissible redistricting activities outside the context of their work, provided they do not make use of organization facilities or funds. See 45 C.F.R. Part 1632.4(c). Nor does the rule in any way affect the rights of anyone to bring redistricting cases. It simply provides that no LSC funds, directly or indirectly, are to be spent on such cases. Indeed, the rule does not even go as far as the regulation upheld in Rust, because as LSC concedes, it would not be improper under the LSC rule for a recipient to "advise potential clients of alternative counsel who might be willing to represent them in a redistricting matter." Def. Memo. at 38; see Rust, 59 U.S.L.W. at 4453. Moreover, since "the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized," plaintiffs' argument that the rule constitutes an unconstitutional condition is similarly unavailing. Rust, 59 U.S.L.W. at 4457.

As a result, plaintiffs' facial challenge to the regulation on First Amendment grounds must fail. Any such challenge must await a concrete instance of excessive application of the rule's strictures in a given situation -- possibly an instance in which a lawyer is required by LSC to withdraw from an ongoing redistricting case over the judge's objection.

In the last analysis, the broad question presented by this litigation is whether or not the action of LSC approved by the Court of Appeals is consistent with congressional purpose. There is room for disagreement with the Circuit Court's judicial resolution of this fundamental issue, but Congress can correct the problem if it has cause to believe that its program has been diverted from one of its major objectives.

LSC's motion for summary judgment is granted. An appropriate Order accompanies this Memorandum.

Gerard A. Gesell

UNITED STATES DISTRICT JUDGE

January 13, 1992.

EDITOR'S NOTE: The following court-provided text does not appear at this cite in 783 F. Supp. 1426.

ORDER

For the reasons stated in the accompanying Memorandum, after full briefing by both parties, it is hereby

ORDERED that plaintiffs' motion for summary judgment is denied; and it is further

ORDERED that defendant's motion for summary judgment, filed April 6, 1990, and still applicable to the issues remanded, is granted; and it is further

ORDERED that the complaint is dismissed with prejudice.

Gerard A. Gesell

UNITED STATES DISTRICT JUDGE

January 13, 1992.

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